Employment Law Update

Eric D. Bentley
Associate General Counsel
University of Houston System
 Univ.
of Houston v. Barth, 403 S.W.3d 851
(Tex. 2013)
• Lawsuit was filed in 2001!
• University tenured professor claimed he was subject
to retaliation after reporting to various university
officials regarding alleged misconduct by the Dean.
• Texas Supreme Court held he was not covered
under TWA because the internal policies he
reported violations about were not “law” under
TWA, his subjective belief they were “law” was
unreasonable given his attorney background, and
he did not report to any appropriate law
enforcement authorities.
 Final
Rule Implementing Expanded Military
Caregiver and Qualifying Exigency Leave
(effective March 8, 2013).
• “Covered military member” is now “military
member” and includes members of the National
Guard and Reserves and the Regular Armed Forces.
• Caregiver leave can be taken up to five years after
the service member leaves the military.
• Employees can take leave to care for parent when
care is necessitated by the employee’s covered
active duty (e.g., transferring parent to care facility).
2013 guidance on Leave to Care for
adult son or daughter
• The FMLA regulations define a “son or daughter” 18
years of age or older as one who is “‘incapable of
self-care because of a mental or physical disability’
at the time that FMLA leave is to commence.” 29
C.F.R. § 825.122(c).
• Regulations do not address whether disability must
have occurred before son or daughter turned 18.
• DOL says - Age of son/daughter at onset of
disability is irrelevant to determining parent’s
eligibility for FMLA leave.
 Demers
v. Austin, 729 F.3d 1011 (9th Cir. 2013)
• Tenured professor criticized university’s administration
and offered accreditation plan for department.
• Professor sued, claiming low performance evaluations
were in retaliation for his writings.
• 9th Circuit ruled that Garcetti v. Ceballos does not apply,
rather, Pickering v. Board of Education applies to
teaching and academic writing.
• Writing addressed matter of public concern, therefore
protected under Pickering.
• Circuit split: 3rd, 6th, and 7th hold that Garcetti denies
public college faculty to bring retaliation claims for
certain speech.
 But
See Dixon v. Univ. of Toledo, 702 F.3d 269
(6th Cir. 2012)
• HR Director wrote an op-ed article voicing her
belief that members of the LGBT community do
not possess immutable characteristics in the
way that she as an African-American woman
does. Implied that LGBT community should not
be entitled to anti-discrimination protections.
• University fires Dixon.
• Court followed Garcetti standard.
• Held that her speech was not protected speech
because it was speech as a public employee.
 May
2013 EEOC Guidance Re: Application of Title
VII and ADA to applicants/employees who
experience Domestic or Dating Violence, Sexual
Assault, or Stalking
• EEOC Example Regarding Domestic Violence:
An employer terminates an employee after
learning she has been subjected to domestic
violence, saying he fears the potential “drama
battered women bring to the workplace.”
- Other EEOC examples relate to gender
 Vance
v. Ball State Univ., 133 S.Ct. 2434 (2013)
• University not vicariously liable for alleged
creation of racially hostile work environment
because employee charged with creating it was
not a supervisor, rather a co-worker.
• Who is a supervisor? U.S. Supreme Court held
employee is a supervisor only if he/she is
empowered by employer to take tangible
employment actions against victim.
• Court rejected EEOC’s Guidance that a
supervisor is one who has the ability to exercise
significant direction over another’s daily work.
 Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517 (2013)
• But, for causation required in retaliation
• U.S. Supreme Court rejects assertion that it
suffices to show motive to discriminate was
one of employer’s motives for taking
retaliatory action.
• Eliminates mixed motive retaliation claims
(e.g. fired for stealing money and
complaining to the EEOC).
EEOC v. Houston Funding II, Ltd., 717 F.3d
425 (5th Cir. 2013)
• EEOC claimed employee was fired because she
wanted to pump breast milk after giving birth.
• District Court held that even if company fired
Plaintiff because she wanted to pump breast
milk, “[L]actation is not pregnancy, childbirth,
or a related medical condition…firing someone
because of lactation or breast-pumping is not
sex discrimination.”
• 5th Circuit reversed and held firing a woman
because of lactation or expressing milk is
unlawful sex discrimination because it is on
basis of pregnancy, childbirth, or related
medical condition.
 Weatherly
Cir. 2013)
v. Ala. State Univ., 728 F.3d 1263 (11th
• Three Plaintiffs worked under two supervisors and claimed
racial and sexual harassment. Would you go to trial on
these facts or would you settle?
• Supervisor uses “N-Word” on countless occasions including
calling Plaintiff’s 7 year old son an N___, making him cry;
• Supervisor refers to Plaintiff’s breasts as “melons” and
behind as “Hams.”
• Supervisor said she would make Plaintiff strip to see how
many tattoos she has and where;
• Supervisor rubbed Plaintiff’s body and would place her
breasts on Plaintiff’s shoulders from behind;
• Supervisor told Plaintiff to “Talk to the N___ side of the
hand because the white side does not want to hear it” and
“we got to dress professional, we don’t dress like N____.”
 Weatherly
v. Ala. State Univ., 728 F.3d 1263 (11th
Cir. 2013) (Cont’d)
• Supervisor threatened that “no one was to speak with the
EEOC and that if they did, they would be dealt with.
• One of the Plaintiffs complained to the HR Director who
said she could not submit a complaint.
• Case went to trial. Jury returned a verdict awarding over $1
Million to the three Plaintiffs (over $300,000 each).
• “We are left to speculate who is in charge at ASU.
Regardless, however, we are unnerved by the apparent
acquiescence to, if not outright condoning of, the abusive
work environment created by its high-level employees.
Such conduct simply has no place in a work environment,
especially at a publicly funded university.”
Johnson v. Strive East Harlem Employment Group et.
al., U.S. District Court, Southern District of NY (2013)
• Black supervisor berates black employee after she
reported sexual harassment. Supervisor uses the
“N-word” repeatedly when berating the employee.
• Incident was recorded on the employee’s iPhone
and was played to the jury.
• Jury concluded the use of the “N-word” was racial
harassment and awarded $250,000 to the
• Jury rejected argument that it is okay for a black
supervisor to use the “N-word” toward a black
 Waldon
v. Cincinnati Public Schools, 941 F.
Supp. 2d 884 (S.D. Ohio 2013).
 Ohio law required termination of school
employees with convictions no matter how far
 School terminated 10 current employees with
convictions, 9 of whom were Black.
Convictions were decades old.
 Two of the employees filed suit.
 Defendant argued they were just following
state law.
 Court held Plaintiffs proved disparate impact
discrimination and noted federal law (Title VII)
trumps state law.
 Waldon
supports the EEOC’s April 2012
guidance on use of criminal background
 Cannot make across the board decisions on
criminal background checks (i.e., policy says
no one will be hired with a criminal
 Must conduct a specific analysis and consider
the nature of the job, the nature and
seriousness of the offense, and the time since
it occurred.
 In
Macy v. Holder (EEOC April 20, 2012), the
EEOC determined transgendered persons are
protected from discrimination under Title VII.
 Macy, a male, applied for a position as an ATF
 During the background check, she told the
investigator she was in the process of
transitioning from male to female.
 ATF tells Macy the position was eliminated,
but then hires another applicant.
 EEOC determined gender stereotyping and
gender identity discrimination are a form of
sex discrimination under Title IX.
 Title
VII does not cover sexual orientation
 No Texas law covering employment
discrimination on the basis of sexual
 But see Gill v. Devlin, 867 F.Supp.2d 849
(N.D. Tex. 2012).
• Former temporary college instructor at
Tarrant County College District brought an
equal protection claim against the
Department Chair under Section 1983.
• Claims she was not assigned classes on
the basis of her sexual orientation.
 Gill
v. Devlin, 867 F.Supp.2d 849 (N.D. Tex.
2012). (Cont’d)
• Department chair admits he told Devlin
that Texas is a conservative state and that
“Texas and [the college] do not like
• Court held Gill plausibly alleged a violation
of clearly established equal protection
May 2013 Guidance on Cancer,
Diabetes, Epilepsy in the Workplace under the
 Pre-offer: As with other medical conditions,
cannot ask questions or require applicant to
have medical exam before a conditional job
offer is made. Note: GINA would prevent
 Post-offer: May ask general questions about
health and may require medical exam if all
applicants treated the same.
 If
employee discloses they have cancer,
diabetes, epilepsy – cannot ask employee
questions about it. Can ask if they need an
accommodation and what type (not
 Can ask if performance problems are caused
by the employee’s condition (not
 May request medical documentation to
substantiate reasonable accommodation
 EEOC says granting leave without fixed return
date may be a reasonable accommodation!
 Trending
now…How will you handle alleged
sexual assaults between two staff or faculty
members? What if it occurs on campus?
What if it occurs off-campus?
 Dear Colleague Letter – April 2011
• “Title IX also protects employees of a
recipient from sexual harassment.”
• 2001 Guidance: states that sexual
harassment among employees is conduct
that is prohibited by Title IX.
7 Pitfalls of Using Social Media to Check
Backgrounds of Applicants
Only performing social media background
checks on certain applicants.
Inconsistently reviewing social media postings
or taking into account an applicant’s protected
status. Disparate impact claim.
Taking into account social media postings
considered protected speech under the 1st
Hiring a third party to perform the screening but
failing to follow the Fair Credit Reporting Act.
7 Pitfalls of Using Social Media to Check
Backgrounds of Applicants (Cont’d)
Requiring applicants to divulge their social
media passwords.
Failing to disqualify an applicant whose
postings indicate they would be a threat to
other employees.
Taking into account an applicant’s concerted
activities or union activities.

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